By Gallego H.B. No. 3070
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the enforcement of court-ordered obligations to pay
1-3 restitution to victims of crime and to reimburse the crime victims'
1-4 compensation fund by garnishment of current wages for personal
1-5 service; providing that restitution; and providing civil penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Chapter 42, Code of Criminal Procedure, is
1-8 amended by the addition of Section 42.161, to read as follows:
1-9 Art. 42.161. ENFORCEMENT OF COURT-ORDERED RESTITUTION AND
1-10 REIMBURSEMENT.
1-11 Sec. 1. ACCRUAL OF INTEREST ON DELINQUENT COURT-ORDERED
1-12 RESTITUTION AND REIMBURSEMENT. Interest accrues on delinquent
1-13 restitution ordered by a court to be paid by a person placed on
1-14 community supervision to protect or to restore a claimant or
1-15 victim, as defined by Article 56.32 of this code, of his offense
1-16 and on delinquent reimbursement payments ordered paid to the crime
1-17 victims' compensation fund created under the Crime Victims'
1-18 Compensation Act for any amounts paid from that fund to a victim,
1-19 as defined by Article 56.01 of this code, of his offense at the
1-20 rate of interest established under Section 2, Article 5069-1.05,
1-21 Vernon's Texas Civil Statutes, from the date the court-ordered
1-22 payment of restitution or reimbursement is delinquent until the
1-23 date the court-ordered payment of restitution or reimbursement is
2-1 paid, regardless of whether the amount of court-ordered payments of
2-2 restitution or reimbursement in arrears has been reduced to
2-3 judgment by the court. A court that confirms the amount of
2-4 court-ordered payments of restitution or reimbursement in arrears
2-5 shall include all prior arrears and the amount of interest owed in
2-6 the total amount confirmed.
2-7 Sec. 2. DATE OF DELINQUENCY. (a) A court-ordered payment
2-8 of restitution or reimbursement is delinquent if the payment is not
2-9 received by the obligee, registry, or entity specified in the
2-10 payment order or judgment before the 31st day after the payment
2-11 date stated in the order.
2-12 (b) If a payment date is not stated in the payment order or
2-13 judgment, a court-ordered payment of restitution or reimbursement
2-14 is delinquent if payment is not received by the obligee, registry,
2-15 or entity specified in the payment order or judgment on the date
2-16 that an amount equal to the restitution or reimbursement payable
2-17 for one month becomes past due.
2-18 Sec. 3. COLLECTION. Interest that accrues as provided by
2-19 this section is part of the restitution or reimbursement obligation
2-20 and may be collected by any means provided for the collection of
2-21 debts, judgments, and court-ordered child support. An amount
2-22 collected in excess of current restitution or reimbursement shall
2-23 be applied, first, to interest and delinquent restitution and
2-24 reimbursement payments that have been reduced to judgment.
2-25 Sec. 4. BOND OR SECURITY DEPOSIT. If an obligor who has
3-1 been ordered to pay restitution to a victim of his offense or make
3-2 reimbursement to the crime victims' compensation fund under Article
3-3 42.12, Section 11, of this code seeks to execute a bond or to post
3-4 security pending a hearing by or a proceeding in an appellate court
3-5 relating to enforcement of such court-ordered payments of
3-6 restitution or reimbursement, the bond or security on forfeiture
3-7 shall be payable to the obligee, registry, or entity specified in
3-8 the payment order or judgment.
3-9 Sec. 5. DISCRETIONARY ORDER TO EXECUTE BOND OR DESPOSIT
3-10 SECURITY. (a) If an obligor who has been ordered to pay
3-11 restitution to a victim of his offense or make reimbursement to the
3-12 crime victims' compensation fund under Article 42.12, Section 11,
3-13 of this code is employed by an employer not subject to the
3-14 jurisdiction of the court or is a person to whom the application of
3-15 this article is unworkable or inappropriate under existing
3-16 circumstances, the court may order the obligor to execute a bond,
3-17 subject to the approval of the court, or to deposit security with
3-18 the court.
3-19 (b) The bond or security deposit is to be in an amount set
3-20 by the court and conditioned upon the payment of past-due and
3-21 future payments of such restitution or reimbursement.
3-22 (c) The bond or security deposit shall be payable to the
3-23 obligee or such other person or entity designated by the court.
3-24 Sec. 6. MOTION AND HEARING ON BOND OR SECURITY DEPOSIT
3-25 FORFEITURE. On the motion of a person or entity for whose benefit
4-1 a bond has been executed or security deposited, the court, after
4-2 notice and hearing, may forfeit all or part of the bond or security
4-3 deposit for any amount of court-ordered restitution or
4-4 reimbursement payments that are due and owing upon proof that one
4-5 or more such payments are unpaid.
4-6 Sec. 7. COLLECTION OF FORFEITED BOND OR SECURITY DEPOSIT.
4-7 Funds collected from a forfeited bond or security deposit shall be
4-8 paid to the obligee and shall be applied to the outstanding
4-9 restitution and reimbursement arrearages of the obligor.
4-10 Sec. 8. JOINDER OF PROCEEDINGS. Proceedings to revoke,
4-11 amend, modify, or continue a term of community supervision and the
4-12 terms and conditions thereof may be joined with proceedings to
4-13 enforce a past-due obligation to pay restitution or reimbursement
4-14 and proceedings to forfeit a bond or security deposit payable to
4-15 the obligee.
4-16 Sec. 9. DEFENSE TO REVOCATION PROCEEDING. The application
4-17 of funds from a forfeited bond or security deposit to any past-due
4-18 or delinquent court-ordered payments of restitution or
4-19 reimbursement is not a defense in a proceeding to revoke, amend,
4-20 modify or continue the obligor's term of community supervision and
4-21 the terms and conditions thereof.
4-22 Sec. 10. DISPOSITION OF EXCESS FORFEITED MONEYS. If the
4-23 proceeds of the forfeited bond or security deposit exceed the
4-24 amount of any past-due or delinquent court-ordered payments of
4-25 restitution or reimbursement, the court in its discretion may order
5-1 that all or a portion of the excess amount shall be applied to pay
5-2 unpaid court costs owed by the obligor, unpaid reimbursement owing
5-3 to the county for payments made to the obligor's court-appointed
5-4 attorney, unpaid community supervision fees and costs, and
5-5 attorney's fees and costs incurred by the county or the person or
5-6 entity bringing the enforcement or forfeiture proceedings.
5-7 SECTION 2. Chapter 42, Code of Criminal Procedure, is
5-8 amended by the addition of Article 42.162, to read as follows:
5-9 Art. 42.162. WITHHOLDING FROM EARNINGS FOR COURT-ORDERED
5-10 RESTITUTION AND REIMBURSEMENT.
5-11 Sec. 1. Duty of Court to Order Income Withholding. Except
5-12 for good cause shown, on agreement of the attorney representing the
5-13 State and the victim to whom restitution is due, or on agreement of
5-14 an authorized representative of the Crime Victims' Compensation
5-15 Fund to which reimbursement is owed for compensation payments made
5-16 to a victim of the obligor's offense, the court shall enter an
5-17 order that provides that income be withheld from the disposable
5-18 earnings of the obligor:
5-19 (a) in every criminal case where the offense is a felony or
5-20 a Class A misdemeanor or a Class B misdemeanor and the court orders
5-21 that:
5-22 (1) restitution be paid because property of a victim
5-23 of the obligor's offense was damaged, destroyed, stolen, or lost as
5-24 a result of the offense;
5-25 (2) restitution be paid because a victim of the
6-1 obligor's offense incurred reasonable expenses in efforts to
6-2 restore the victim to the situation or condition in which the
6-3 victim found herself or himself immediately prior to the commission
6-4 of the offense; or
6-5 (3) reimbursement be made to the crime victims'
6-6 compensation fund for any amounts paid from that fund to a victim
6-7 of the obligor's offense.
6-8 (b) on motion by the attorney representing the State to
6-9 require income withholding regarding an order or judgment to pay
6-10 restitution to a victim of the obligor's offense or on motion of
6-11 the attorney general to require income withholding regarding an
6-12 order or judgment to pay reimbursement to the crime victims
6-13 compensation fund for any amounts paid from that fund to a victim
6-14 of the obligor's offense entered before the effective date of this
6-15 Article; provided that at the time the motion is filed the obligor
6-16 is shown to have been in arrears for a time period of at least 30
6-17 days for some portion of the amount due and is currently in arrears
6-18 for an amount equal to or greater than that due for a one-month
6-19 period.
6-20 Sec. 2. Payment. The court shall order that income withheld
6-21 under this Article for payment of court-ordered restitution be paid
6-22 through the community supervision and corrections department and
6-23 that income withheld under this Article for payment of
6-24 court-ordered reimbursement to the crime victims' compensation fund
6-25 be paid through the office of the attorney general, unless the
7-1 court finds that there is good cause to require payments to be made
7-2 to another person or office.
7-3 Sec. 3. Withholding for Arrearages. (a) In addition to
7-4 income withheld for the current payments of court-ordered
7-5 restitution to a victim of the obligor's offense or reimbursement
7-6 to the crime victims' compensation fund, in appropriate
7-7 circumstances the court shall enter an order that income be
7-8 withheld from the disposable earnings of the obligor to be applied
7-9 toward the liquidation of any restitution or reimbursement
7-10 arrearages, including interest as provided by Article 42.161(a) of
7-11 this code.
7-12 (b) The additional amount to be withheld to be withheld to
7-13 be applied towards arrears shall be sufficient to fully discharge
7-14 those arrears in not more than two years or add 20 percent to the
7-15 amount of the current monthly payment amount, which will result in
7-16 the arrears being fully discharged in the least amount of time
7-17 consistent with the limitations on the maximum amount that may be
7-18 withheld from earnings as provided by Subsection (e) of this
7-19 Article.
7-20 (c) If current restitution or reimbursement payments are no
7-21 longer owed, the court shall enter an order that income be withheld
7-22 from the disposable earnings of the obligor to be applied toward
7-23 the liquidation of any restitution or reimbursement arrearages,
7-24 including accrued interest, in an amount sufficient to fully
7-25 discharge those arrears in not more than two years, consistent with
8-1 the limitations on the maximum amount that may be withheld from
8-2 earnings as provided by Subsection (e) of this Article.
8-3 (d) If the court finds that such a repayment schedule would
8-4 cause the obligor or the obligor's family to suffer unreasonable
8-5 hardship, the court may extend the repayment period for a
8-6 reasonable length of time.
8-7 Sec. 4. Contents of Order. (a) An order withholding income
8-8 shall state:
8-9 (1) the style, docket number, and court having
8-10 continuing jurisdiction of the obligor's case giving rise to the
8-11 obligation to pay restitution or reimbursement;
8-12 (2) the name, address, and, if available, the social
8-13 security number and date of birth of the obligor;
8-14 (3) the amount, including accrued interest, and
8-15 duration of the restitution or reimbursement payments;
8-16 (4) the name, address, and office telephone number of
8-17 the person or agency to whom the payments shall be made; and
8-18 (5) any other information deemed necessary to
8-19 effectuate the order.
8-20 (b) The court shall order the obligor to notify the court
8-21 promptly of any change affecting the order and the amount ordered
8-22 to be paid as restitution or reimbursement.
8-23 Sec. 5. Amount Withheld From Earnings. The court shall
8-24 enter an order directing that any employer of the obligor withhold
8-25 from the obligor's disposable earnings the amount specified in the
9-1 order, up to a maximum amount of 50 percent of the obligor's
9-2 disposable earnings.
9-3 Sec. 6. ISSUANCE OF ORDER. (a) On request of the attorney
9-4 representing the state, the office of the attorney general, or the
9-5 victim to whom restitution hs been ordered to be paid, the clerk of
9-6 the court shall cause a certified copy of the order withholding
9-7 income from earnings to be delivered to the obligor's current
9-8 employer or to any subsequent employer of the obligor. The
9-9 requestor must include the name and address of the employer in the
9-10 request.
9-11 (b) The clerk shall attach a copy of this Article to the
9-12 order for the information of the employer.
9-13 (c) The clerk shall issue and mail the certified copy of the
9-14 order not later than the fourth working day after the date the
9-15 order assigned of the request is filed, whichever is later.
9-16 Sec. 7. NOTICE AND EFFECTIVE DATE OF ORDER. (a) The
9-17 employer shall begin to withhold income in accordance with an order
9-18 issued under this Article no later than the first pay period
9-19 following the date on which the order was delivered to the employer
9-20 and shall continue to withhold income as long as the obligor is
9-21 employed by the employer.
9-22 (b) An order issued under this Article that is delivered to
9-23 an employer that does business in this state is binding on the
9-24 employer without regard to whether the obligor resides or works
9-25 outside the state.
10-1 (c) Delivery of the order to the employer shall be by
10-2 certified or registered mail, return receipt requested, to the
10-3 person authorized to receive service of process in civil cases
10-4 generally, or to a person designated by the employer to receive
10-5 notices of delinquency by written notice to the clerk of the
10-6 appropriate court, or by the service of citation as provided by the
10-7 Texas Rules of Civil Procedure.
10-8 (d) After the effective date of the order, the amount to be
10-9 withheld shall be remitted to the person or office named in the
10-10 order on each pay date. The payment shall include the date on
10-11 which the withholding occurred.
10-12 Sec. 8. FEES. (a) The employer may deduct an
10-13 administrative fee of not more than $5 per month from the obligor's
10-14 disposable earnings in addition to the amount to be withheld as
10-15 payment of court-ordered restitution or reimbursement.
10-16 (b) The clerk of the court may charge the requester a
10-17 reasonable fee for each order issued and delivered to an employer
10-18 by mail, not to exceed $15.
10-19 Sec. 9. HEARING REQUEST BY EMPLOYER. Within 20 days after
10-20 delivery of an order of income withholding under this Article, the
10-21 employer may make a motion for hearing on the applicability of the
10-22 order to the employer. The hearing shall be held within 15 days
10-23 following the filing of the motion. The order remains binding and
10-24 payments shall continue to be made pending further order of the
10-25 court.
11-1 Sec. 10. PRIORITY OF WITHHOLDING. An order made under this
11-2 Article has priority over any garnishment, attachment, execution,
11-3 or other assignment or order affecting disposable earnings, except
11-4 an order enforcing payment of child support.
11-5 Sec. 11. LIABILITY AND OBLIGATION OF EMPLOYER FOR PAYMENTS.
11-6 (a) An employer receiving an order under this section who complies
11-7 with the order is not liable to the obligor for the amount of
11-8 income withheld and paid as provided in the order. An employer who
11-9 received an order of withholding under this Article and who does
11-10 not comply with the order is liable to the obligee for the amount
11-11 not paid in compliance with the order or to the obligor for the
11-12 amount withheld and not paid and for reasonable attorney's fees and
11-13 court costs.
11-14 (b) Reasonable attorney's fees may be assessed, ordered
11-15 paid, and collected as any lawful debt based on actions and efforts
11-16 of employees of the attorney representing the state, the office of
11-17 the attorney general, and the community supervision and corrections
11-18 department.
11-19 (c) An employer receiving two or more orders on any named
11-20 obligor shall comply with every order to the maximum extent
11-21 possible. If the total amount in the orders exceeds the maximum
11-22 amount allowable to be withheld under this Article, the employer
11-23 shall pay an equal amount towards the current restitution or
11-24 reimbursement amount of all orders until each order is individually
11-25 complied with, and thereafter equal amounts on the arrearage
12-1 portion of all orders until each order or writ is complied with, or
12-2 until the maximum total amount of allowable withholding under
12-3 Section 5 of this Article is reached, whichever occurs first. If
12-4 an employer is ordered to withhold from more than one obligor, the
12-5 employer may combine the withheld amounts from the obligors' wages
12-6 and make a single payment to each appropriate agency requesting
12-7 withholding if the employer separately identifies the amount of the
12-8 payment that is attributable to each obligor.
12-9 Sec. 12. EMPLOYER'S PENALTY FOR DISCRIMINATORY HIRING OR
12-10 DISCHARGE. (a) An employer may not use an order authorized by
12-11 this Article as grounds in whole or in part for the termination of
12-12 employment or for any other disciplinary action against an
12-13 employee.
12-14 (b) An employer may not refuse to hire an employee because
12-15 of an order withholding income.
12-16 (c) If an employer intentionally discharges an employee in
12-17 violation of this subsection, the employer continues to be liable
12-18 to the employee for current wages and other benefits and for
12-19 reasonable attorney's fees and court costs incurred by the employee
12-20 in enforcing the employee's rights under this subsection.
12-21 (d) An action under this section maybe brought only by the
12-22 employee.
12-23 Sec. 13. FINE FOR EMPLOYERS. In addition to the civil
12-24 remedies provided by Sections 11 and 12 of this Article or by any
12-25 other remedy provide by law, an employer who knowingly violates the
13-1 provisions of those sections may be subject to a fine not to exceed
13-2 $500 for each occurrence in which the employer fails to withhold
13-3 income. Any fines recovered under this subsection shall be paid
13-4 to the obligee and credited against any amounts owned by the
13-5 obligor.
13-6 Sec. 14. NOTICE OF TERMINATION OF EMPLOYMENT AND OF NEW
13-7 EMPLOYMENT. If and when an obligor terminates employment with an
13-8 employer who has been withholding income, both the obligor and the
13-9 employer shall notify the court and the person or agency to whom
13-10 payments are ordered to be made of that fact within seven days of
13-11 the termination of employment and shall provide the obligor's last
13-12 known address and the name and address of the obligor's new
13-13 employer, if known. The obligor has a continuing duty to inform
13-14 any subsequent employer of the income withholding order after
13-15 obtaining employment.
13-16 Sec. 15. FORM OF ORDER WITHHOLDING INCOME. The attorney
13-17 general shall promulgate by rule a form for the order withholding
13-18 income under this Article that shall be sufficient if entered by a
13-19 court in substantially the prescribed manner. The attorney general
13-20 may promulgate additional forms to facilitate efficient collection
13-21 of court-ordered restitution and reimbursement and to promote the
13-22 administration of justice for all parties.
13-23 Sec. 16. REDUCTION OR TERMINATION OF WITHHOLDING. If a
13-24 court has rendered an order which reduces the amount to be withheld
13-25 in payment of restitution or reimbursement under this Article or
14-1 terminates withholding, any person or governmental entity may
14-2 deliver to the employer a certified copy of the order without the
14-3 requirement that the clerk of the court deliver the order. The
14-4 provisions of Section 11 of this Article apply to an order which
14-5 reduces or terminates withholding.
14-6 Sec. 17. TIME LIMITATIONS. The court retains jurisdiction
14-7 to enter an order that provides for income to be withheld from the
14-8 disposable earnings of the obligor if the motion for income
14-9 withholding is filed before the fourth anniversary of:
14-10 (a) the date the obligation to pay restitution or
14-11 reimbursement terminates under the order or judgment imposing the
14-12 obligation; or
14-13 (b) an order withholding income under this Article was
14-14 rendered and arrears, including any accrued interest, have not been
14-15 fully discharged.
14-16 SECTION 3. Chapter 42, Code of Criminal Procedure, is
14-17 amended by the addition of Article 42.163, to read as follows:
14-18 Art. 42.163. INELIGIBILITY TO RECEIVE STATE GRANTS OR LOANS
14-19 OR BID ON STATE CONTRACTS. (a) An obligor ordered to pay
14-20 restitution to a victim of the obligor's offense or reimbursement
14-21 to the crime victims' compensation fund under Article 42.12,
14-22 Section 11, of this code who is more than 30 days delinquent in
14-23 paying child support is not eligible to:
14-24 (1) submit a bid or enter into a contract to provide
14-25 property, materials, or services under a contract with the state or
15-1 any political subdivision of the state;
15-2 (2) receive a state-funded grant or loan; or
15-3 (3) win any prize in any contest or game supervised or
15-4 operated by the Texas Lottery Commission.
15-5 (b) A sole proprietorship, partnership, corporation, or
15-6 other associative entity in which a sole proprietor, partner,
15-7 majority shareholder, or substantial owner is a delinquent obligor
15-8 who is ineligible to bid on a state contract under Subsection
15-9 (a)(1) of this Article may not bid on a state contract or receive a
15-10 state-funded grant or loan or win any prize in any contest or game
15-11 supervised or operated by the Texas Lottery Commission.
15-12 (c) An obligor ordered to pay restitution to a victim of the
15-13 obligor's offense or reimbursement to the crime victims'
15-14 compensation fund under Article 42.13, Section 11, of this code
15-15 remains ineligible to submit a bid on or enter into a state
15-16 contract, apply for a state-funded grant or loan, or win any prize
15-17 in any game or contest supervised or operated by the Texas Lottery
15-18 Commission until:
15-19 (1) all arrearages in court-ordered restitution or
15-20 reimbursement, including accrued interest, have been paid; or
15-21 (2) the obligor is in compliance with a written
15-22 repayment agreement or court order as to any existing delinquency.
15-23 (d) Each bidder for a state contract, applicant for a
15-24 state-funded loan or grant, or claimant for any prize of $500 or
15-25 more in any game or contest supervised or operated by the Texas
16-1 Lottery Commission under Subsection (a) of this Article shall
16-2 submit a signed, sworn statement accompanying any bid or
16-3 application or claim affirming that the bidder, applicant, or
16-4 claimant is not 30 or more day delinquent in paying restitution or
16-5 reimbursement under a court order a written repayment agreement.
16-6 (e) The attorney general and the general services commission
16-7 may adopt rules or prescribe forms to implement any provision of
16-8 this section.
16-9 SECTION 4. Article 56.02, Code of Criminal Procedure, is
16-10 amended by adding Subdivision (12) to read as follows:
16-11 (12) the right to court-ordered restitution as
16-12 guaranteed by Article I, Section 30(4), of the Texas Constitution,
16-13 and the right that the court order be enforced.
16-14 SECTION 5. SEVERABILITY. If any section, sentence, clause,
16-15 or part of this Act shall, for any reason, be held invalid, such
16-16 invalidity shall not affect the remaining portions of the Act, and
16-17 it is hereby declared to be the intention of this legislature to
16-18 have passed each section, sentence, clause, or part irrespective of
16-19 the fact that any other section, sentence, clause, or part may be
16-20 declared invalid.
16-21 SECTION 6. CIVIL CAUSES OF ACTION. The changes in law made
16-22 by this Act apply only to a cause of action that accrues on or
16-23 after the effective date of this article. A cause of action that
16-24 accrues before the effective date of this article is governed by
16-25 the law in effect on the date the cause of action accrues, and that
17-1 law is continued in effect for this purpose.
17-2 SECTION 7. EFFECTIVE DATE. This Act takes effect on
17-3 September 1, 1995.
17-4 SECTION 8. EMERGENCY. The importance of this legislation
17-5 and the crowded condition of the calendars in both houses create an
17-6 emergency and an imperative public necessity that the
17-7 constitutional rule requiring bill to be read on three several days
17-8 in each house be suspended, and this rule is hereby suspended, and
17-9 that this Act take effect and be in force from and after its
17-10 passage, and it is so enacted.